1     
DESIGN PROFESSIONALS LIABILITY AMENDMENTS

2     
2018 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Kay J. Christofferson

5     
Senate Sponsor: Curtis S. Bramble

6     

7     LONG TITLE
8     General Description:
9          This bill enacts provisions related to design professional liability.
10     Highlighted Provisions:
11          This bill:
12          ▸     defines terms;
13          ▸     prohibits a provision in a design professional services contract that requires a design
14     professional to indemnify, hold harmless, or reimburse a person for attorney fees or
15     other costs, except in the case of:
16               •     the design professional's breach of contract, negligence, recklessness, or
17     intentional misconduct; or
18               •     the design professional's subconsultant's negligence;
19          ▸     prohibits a provision in a design professional services contract that requires a design
20     professional to defend a person against a claim alleging liability for damages;
21          ▸     establishes a standard of care for design professionals; and
22          ▸     prohibits a person from establishing a different standard of care for a design
23     professional in a design professional services contract.
24     Money Appropriated in this Bill:
25          None
26     Other Special Clauses:
27          None
28     Utah Code Sections Affected:

29     ENACTS:
30          13-8-7, Utah Code Annotated 1953
31     

32     Be it enacted by the Legislature of the state of Utah:
33          Section 1. Section 13-8-7 is enacted to read:
34          13-8-7. Contract for design professional services -- Agreements to indemnify.
35          (1) As used in this section:
36          (a) "Design professional" means:
37          (i) an individual licensed under:
38          (A) Title 58, Chapter 3a, Architects Licensing Act;
39          (B) Title 58, Chapter 22, Professional Engineers and Professional Land Surveyors
40     Licensing Act; or
41          (C) Title 58, Chapter 53, Landscape Architects Licensing Act; or
42          (ii) a nongovernmental entity engaged in the business of providing services that require
43     a license described in Subsection (1)(a)(i).
44          (b) "Design professional services" means:
45          (i) professional services within the scope of the practice of architecture as defined in
46     Section 58-3a-102;
47          (ii) professional engineering or professional land surveying as defined in Section
48     58-22-102; or
49          (iii) professional services within the scope of the practice of landscape architecture as
50     defined in Section 58-53-102.
51          (c) (i) "Design professional services contract" means a contract under which a design
52     professional agrees to provide design professional services:
53          (A) to a governmental entity; or
54          (B) for an improvement owned or to be owned by a governmental entity.
55          (ii) "Design professional services contract" does not include a construction contract, as

56     defined in Section 13-8-1.
57          (d) "Indemnification provision" means a covenant, promise, agreement, or
58     understanding in, in connection with, or collateral to, a design professional services contract
59     that requires the design professional to:
60          (i) indemnify or hold harmless any person from or against liability for damages other
61     than liability for damages to the extent caused by or resulting from:
62          (A) the design professional's breach of contract, negligence, recklessness, or intentional
63     misconduct; or
64          (B) the design professional's subconsultant's negligence;
65          (ii) defend any person from or against a claim alleging liability for damages, including
66     a claim alleging:
67          (A) the design professional's breach of contract, negligence, recklessness, or intentional
68     misconduct; or
69          (B) the design professional's subconsultant's negligence; or
70          (iii) reimburse any person for attorney fees or other costs incurred by the person in
71     defending against a claim alleging liability for damages, except to the extent the attorney fees
72     or costs were incurred due to:
73          (A) the design professional's breach of contract, negligence, recklessness, or intentional
74     misconduct; or
75          (B) the design professional's subconsultant's negligence.
76          (e) "Governmental entity" means the same as that term is defined in Section
77     63G-7-102.
78          (f) "Improvement" means the same as that term is defined in Section 78B-2-225.
79          (g) "Subconsultant" means a person with whom a design professional contracts to
80     provide a service related to or part of the design professional services that the design
81     professional agrees to perform under a design professional services contract.
82          (2) An indemnification provision is void.

83          (3) (a) A design professional shall perform design professional services under a design
84     professional services contract consistent with the professional skill and care ordinarily provided
85     by other design professionals:
86          (i) with the same or similar professional license; and
87          (ii) providing the same or similar design professional service:
88          (A) in the same or similar locality;
89          (B) at the same or similar time; and
90          (C) under the same or similar circumstances.
91          (b) (i) Except as provided in Subsection (3)(b)(ii), a design professional services
92     contract may not establish a standard of care different from the standard of care described in
93     Subsection (3)(a).
94          (ii) A design professional services contract may require a design professional to
95     perform design professional services consistent with a specialized design expertise if the nature
96     of the project that is the subject of the design professional services contract reasonably requires
97     the specialized design expertise.
98          (c) A provision in a design professional services contract that purports to waive or
99     conflicts with a provision of Subsection (3)(b) is void.
100          (4) The provisions of this section apply to a design professional services contract
101     executed on or after May 8, 2018.